The Problems with the Public Trust

Donn Zaretsky, author of theartlawblog.com and a prominent art attorney at John Silberman Associates, has an essay in Art in America that sums up his voluminously posted points on the deaccessioning debate. Zaretsky has been remorseless in his attacks on the logic of the AAMD rules. He has also been pitiless in pointing out that the anti-daccessionistas, if we can lump them all together under one rubric, are arguing more from emotion than ironclad logic.

The rule is usually justified on the ground that works in museum collections are held “in trust” for the public and therefore cannot be sold. The problem with this argument is that museums sell work all the time. Remember: the AAMD rules clearly permit the sale of work so long as the proceeds are used to buy more work. [ . . . ] Why aren’t those works held in trust? Who gave permission on behalf of the public to sell them? The AAMD position—by expressly sanctioning the sale of works—itself acknowledges that objects in museum collections are not actually held “in trust.”

Another problem with the rationale that works are “held in trust for the public” is that sales between institutions should then reasonably be allowed by the AAMD, but they’re not. If the works in the collections of the National Academy and, say, the Metropolitan Museum are held in trust for the public, what’s wrong with a sale from one to the other? The transferred work continues to be held in the (same) public trust, just a few blocks south.

This argument about the public trust raises an unforeseen issue. If museums are a public trust for future generations, why are they allowed to duplicate missions and compete for works? As we’ve recently seen in Los Angeles, there is wasteful competition for donor funding, duplication of infrastructure and the failure of museum trustees to live up to their responsibilities all over. If art is held in trust, museums should be rationalized for the best access of the public.

(Let’s hasten to add that the preceding paragraph is an argument for illustrative purposes, not advocacy for rationalizing our museum structure.)

So the problem with the deaccessioning debate is that it debates the wrong subject–whether works can be sold for any other reason than buying different works. The real deaccessioning debate has yet to take place. That debate would revolve around the question of who is the best custodian for a work of art–and individual or an institution–and what are the best mechanisms for transferring custody of the works–the art market or institutional authority.

Do we really believe the public, in the form of the government, is best at deciding what is meaningful and lasting art? In the past, private collectors have done more to advance our understanding and appreciation of art than any government institution. What about large private institutions? What’s their track record on innovation? And if that record is good, why should they be hampered by rules about the “public trust?”

Obviously there’s no single answer here. But without a meaningful debate on those issues, we’re left with shrieking and moralizing that does little to bolster the public trust.